RANG LAL Vs. UNION OF INDIA

JUDGEMENT

(1.) THE matter arises in a short compass. THE petitioner has filed the present writ petition for a mandamus to direct the Commissioner, Customs and Central Excise, Jaipur to handover the currency of Rs. 10,49,000/- together with interest @ 18% per annum commencing from the date of seizure i. e. 5. 5. 1993 to the petitioner. THE facts of the case are that while the petitioner was travelling, the local police of Beawar stopped the Maruti Van and after search of luggage they seized indian currency amounting to Rs. 10, 49, 000/- and also the Maruti Van. After handing over the currency and the Maruti Van, to the Customs Department, the Customs Department, in turn, seized the currency and the Maruti Van and issued a show cause notice to the petitioner under Section 124 of the Customs Act. Statement of the petitioner under Section 108 of the Customs Act was recorded wherein he submitted that the currency seized from him was not at all tainted and the same was being brought to Beawar for purchase of a plot. THE petitioner denied that the currency was the sale proceeds of smuggled silver. However, the second respondent Commissioner (Customs), Jaipur vide his order dated 26. 3. 1996 confiscated the currency amounting to Rs. 10,49,000/ -. Being aggrieved with the order of confiscation, the petitioner filed an appeal before the Central Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as the CEGAT') which was numbered as C/166-167/96-NB of 1996. This appeal was allowed vide order dated 24th of July, 1998 (Annexure- A ). Consequently the order of absolute confiscation regarding Indian Currency of Rs. 10,49,000/- was set aside by the CEGAT. THEreupon the petitioner approached the second respondent and other functionaries of the Customs Department for handing over the currency to him but there was no response. Again the petitioner sent a notice by way of demand of justice to the second respondent on 22nd of October, 1998 under Registered Post. Inspite of notice of demand of justice, the orders passed by the CEGAT have not been complied with which compelled the petitioner to file the present writ petition for mandamus directing the second respondent to return the currency seized from him.

(2.) A reply affidavit is filed by the respondents. It is relevant to reproduce para 2 of the reply affidavit filed by the respondents: "that the seized Indian currency amounting to Rs. 10,49,000/- and Maruti Van were absolutely confiscated by the Commissioner, Customs and Central Excise, Jaipur vide order in Original No. 8/96 dt. 25. 3. 1996. Aggrieved by this Order, Svs. Ranglal and Rajesh Jain filed an Appeal before the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi against the order passed by the Commissioner, Customs and Central Excise, Jaipur. The learned Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi vide its final order No. A/663-664/98-NB (DB) dt. 24. 7. 97, set aside the Order of the Commissioner, Customs and Central Excise, Jaipur. The final order passed by the learned Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi has been accepted by the Commissioner, Customs, Jaipur. In view of the order passed by learned Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi, the Indian Currency was to be released to the party. However, now the Income-tax Department have approached Additional Commissioner, Customs and served a Warrant under section 132 A of the Income-tax Act and in term of the Warrant, the currency is required to be handed over to them for taking action under Income-tax Act. Under these circumstances, the petitioner has filed the present writ petition seeking Mandamus against authorities of Customs Department for handing over impugned currency of Rs. 10,49,000/- along with interest. "

(3.) ON 18. 1. 1999, the Deputy Director, Income Tax, Indore issued summons u/sec. 131-1a of the Income Tax Act to the petitioner regarding seizure of Indian currency amounting to Rs. 10,49,000/- from the petitioner on 5. 5. 1993. The petitioner has placed on record a copy of the summon dated 18. 1. 1999 as Annexure-D. The Central Board of Direct Taxes, Government of India vide order dated 22nd of February, 2000 directed the Chief Commissioner of Income Tax, Bhopal to take necessary action and send a report within 20 days in respect of grievance raised by the petitioner vide his application dated 27th of December, 1999. Photo copies of the application dated 27th of December, 1999 as well as the order dated 22nd of February, 2000 are placed on record as Annexures-E and F respectively. It is also pertinent to notice that the order passed by the CEGAT in C/166-167/96-NB (DB) dated 31. 8. 1998 was not taken on appeal by the department and that the said order has become final and conclusive. When this order was brought to the notice of Shri Bhanwar Bagri, learned counsel appearing for the respondents, he submitted that in view of the order passed by the CEGAT the currency amounting to Rs. 10,49,000/- was to be refunded to the petitioner as soon the final order of the CEGAT has been accepted by the Commissioner, Customs Department, Jaipur and that the currency was to be released to the party. However, since the Income Tax Department had approached the Additional Commissioner, Customs Department and served a warrant u/s. 132a of the Income Tax Act and in terms of the warrant, the currency was required to be handed over to the Income Tax Department for taking action under the Income Tax Act. We are unable to appreciate the stand taken by the respondent department. In this case, the Indian currency amounting to Rs. 10,49,000/- was seized from the petitioner and the Commissioner, Customs Department has passed the order confiscating the same for the reasons recorded in its order. However, the said order was set aside by the CEGAT. Under such circumstances, the Customs Department is duty bound to refund the amount to the petitioner atleast immediately after the order passed by the CEGAT. However, the amount has not been refunded and unlawfully and unjustly retained by the department thereby denying the use of the said amount by the petitioner, which compelled the petitioner to come before this Court by filing this writ petition for mandamus.